Should I File a Workers’ Comp Claim or a Personal Injury Lawsuit?

You probably know by now that if you get hurt at work, you are most likely eligible to receive workers’ compensation benefits, which cover the cost of your medical treatment and your lost wages for missed work. You might be wondering, however, if you can file a personal injury lawsuit against the person (or company) who was at fault in the accident. The answer is: it depends.


What are the differences between a Workers’ Comp Claim and a Personal Injury Lawsuit?

Of course, workers’ comp only applies when you get hurt at the workplace or while performing your job duties. The good thing for workers is that it doesn’t matter what caused the accident–as long as it took place on the job. The bad thing is that the amount of money you can recover in a workers’ comp claim is generally limited to your medical costs and lost wages.

In a personal injury lawsuit, on the other hand, the plaintiff can recover “non-economic damages,” such as payment for pain and suffering, which can lead to very large settlements and judgments in favor of the injured person. In a personal injury case, the plaintiff must prove that the injury was caused by someone else’s negligence.


When can I file one but not the other?

Employers who comply with the workers’ comp system by maintaining the appropriate insurance are shielded from personal injury lawsuits that could otherwise be brought by their employees. Therefore, even if your employer is at fault for your work injury, you cannot initiate a personal injury lawsuit against them. Instead, you are must file for workers’ compensation.

Conversely, if your injury is totally unrelated to your job, you may have a personal injury case, but you won’t get workers’ comp. There are of course some grey areas: what if you get into a crash on your commute to work? Generally speaking, injuries sustained while commuting to and from work are not covered under New York’s workers’ compensation laws.


When can I file both?

In some situations, an injured worker is able to file both a workers’ comp claim and a personal injury lawsuit. This occurs when the accident takes place on the job but is caused by the fault of a third party, that is, someone other than the employer. The personal injury lawsuit in this type of case is often called a “third party” claim.

There are various scenarios that may lead to a third party personal injury lawsuit. For example, a delivery driver may be injured in a collision with a negligent third party driver while on the job making a delivery. Alternatively, an employee of a house cleaning service might be injured in a slip-and-fall at a customer’s home. The negligent homeowner is the “third party” in that case.

Injured workers often do not realize that a third party, rather than their employer, is in some way responsible for their injuries. Because personal injury settlements often far exceed the amount of money recoverable in workers’ comp, it is essential to recognize when third-party liability is an option. Nevertheless, the interplay between the two is complicated, as the workers’ comp insurance carrier is entitled to reimbursement and credit if and when you settle a third party case.


If you have any questions about employee rights as an injured worker or accident victim, please contact our office for a consultation.


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